KEI this morning released the May 2015 draft of the copyright provisions in the Trans Pacific Partnership (copyright, ISP annex, enforcement). The leak appears to be the same version that was covered by the EFF and other media outlets earlier this summer. As such, the concerns remain the same: anti-circumvention rules that extend beyond the WIPO Internet treaties, additional criminal rules, the extension of copyright term, increased border measures, mandatory statutory damages, and expanding ISP liability rules, including the prospect of website blocking for Canada.

Beyond the substantive concerns highlighted below, there are two key takeaways. First, the amount of disagreement within the chapter is striking. As of just a few months ago, there were still many critical unresolved issues with widespread opposition to (predominantly) U.S. proposals. Government ministers may continue to claim that the TPP is nearly done, but the parties still have not resolved longstanding copyright issues.

Second, from a Canadian perspective, the TPP could require a significant overhaul of current Canadian law. If Canada caves on copyright, changes would include extending the term of copyright, implementing new criminal provisions, creating new restrictions on Internet retransmission, and adding the prospect of website blocking for Internet providers. There is also the possibility of further border measures requirements just months after Bill C-8 (the anti-counterfeiting bill) received royal assent.

Given the extensive debate on copyright during the 2012 reforms, the TPP upsets the balance the Canadian government struck, mandating reforms without public consultation or debate. The government has granted itself the power to continue to negotiate the TPP during the election period, but all the major parties should publicly declare where they stand on these issues.

Further discussion on key provisions are posted below.

Copyright Term

Unsurprisingly, the U.S.wants all TPP countries to ensure that their copyright term of protection is at least life of the author plus 70 years. That would require countries such as Canada, Japan, New Zealand, and Malaysia to extend their terms by 20 additional years beyond the international standard found in the Berne Convention. The length of term within the TPP is currently in square brackets, suggesting that countries have still not reached a final decision (though expectations are that Canada will cave on the issue).

The Importance of the Public Domain

The general provisions section of the IP chapter contains a notable dispute between Canada and the U.S. over the public domain. There is an article that emphasizes the importance of taking into account the interests of rights holders, service providers, users and the public. Canada and Chile have proposed additional language to acknowledge “the importance of preserving the public domain.” The U.S. and Japan oppose the reference.

Limitations and Exceptions

The copyright provisions include an article on limitations and exceptions that references “criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.” There is also a footnote recognizing the Marrakesh Treaty and one that acknowledges that commercial uses may be legitimate purposes under exceptions and limitations. This article is consistent with current Canadian law.Internet Retransmission

The U.S., Singapore, and Peru support a provision granting rights holders stronger rights over Internet retransmission of television signals. The provision states:

No Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal

Canada – along with Vietnam, Malaysia, New Zealand, Mexico, Chile, Brunei, and Japan – all oppose the provision.

Anti-Circumvention Rules

The DMCA’s anti-circumvention rules (often referred to as digital lock rules) make it into the chapter with restrictions that extend beyond those required by the WIPO Internet treaties. Earlier opposition to mandatory criminal penalties for some circumvention has disappeared as the countries now agree that it is a requirement. The TPP permits some exceptions (there are some found in Canadian law), subject to strict limitations.

In addition to the anti-circumvention rules, there are also provisions on rights management information. Canada currently stands alone in opposing mandatory criminal penalties for rights management information violations (for example, making available copies of works knowing that rights management information has been removed). If Canada caves on the issue, the digital lock and rights management information provisions in the Copyright Act would require amendement by adding new criminal penalties.

ISP liability

The liability of Internet service providers is currently the subject of a lengthy addendum that is complicated by different approaches in the varying TPP countries. The primary approach is to create a legal requirement for ISPs to cooperate with anti-infringement activities in return for limits on liability. The key requirements include a notice-and-takedown system similar to that found in the United States. However, there are also flexibilities included for other countries and a complete carve-out for Canada.

Given that the Canadian government invested significant political capital in the new notice-and-notice system, Canada and the U.S. have proposed an annex to the IP chapter that exempts countries from the ISP requirements provided they have rules that look a lot like the current Canadian copyright rules. These include a notice-and-notice system, a provision creating liability for those that enable infringement, and a search engine content removal provision. It is worth noting that several countries, including Chile, Vietnam, Brunei, and Peru oppose the concept of an annex to address the legal system of one country.

There is potentially one critical additional requirement that would be added to Canadian law – website blocking. The provision currently states that the country would “induce”

Internet service providers carrying out the function referred to in paragraph 2(c) to remove or disable access to material upon becoming aware of a decision of a court to the effect that the person storing the material infringes copyright in the material.

The word “induce” is bracketed, suggesting that there is still some disagreement on the legal requirement associated with the issue. It is not clear what “induce” means in this context, but it seems likely that the U.S. is pushing Canada to create a new website blocking requirement in return for acceptance of the notice-and-notice system.

Copyright Misuse and Abuse

Virtually all countries support a provision that allows for compensation where a rights holder has abused the enforcement powers. The proposal states:Each Party shall ensure that its judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide the party wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse. The judicial authorities shall also have the authority to order the applicant to pay the defendant expenses, which may include appropriate attorney’s fees.

The lone holdout? The U.S., which opposes the provision.

Statutory Damages

There remains a significant dispute over the inclusion of statutory damages. The U.S. wants all countries to be required to have them. Many TPP countries, including New Zealand, Japan, Mexico, Australia, Brunei, and Malaysia, oppose a mandatory requirement. Canada already has statutory damages within the law.

There remains considerable disagreement over the border measures provisions. Having just established new rules in Bill C-8 (the anti-counterfeiting bill), Canada is clearly opposed to reopening the issue. It has therefore proposed adding language clarifying that the rules do not apply to “grey market” goods (ie. goods legally sold first in another country and exported elsewhere) or to in-transit shipments that are destined for another country. There are still many proposals in this section with some attempts to find compromise among the various TPP parties.

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22 Comments

And I wonder how the proponents would deal with requirements that contradict the constitution or the rule of law.

Can a sitting government remove the right to punish a party” who has abused enforcement procedures”? On the face of it, that would be a law to permit a part to make a false or fraudulent statement to the court, to obtain a particular service.

Of course, the proponents may simply not *care* about the rule of law or the courts (;-))

Questions:
Can this profiteering piece of chicanery [TPP] be opted out of by Canada should we be fortunate enough to get a minority government in October?

Is Quebec going to accept this attack on the dissemination of their cultural heritage in all media formats?

Are First Nations subject to a TPP Accord? I haven’t read nor heard mention of any First Nation representation or consultation? AISTR they were/are not subject to the rules imposed by the NAFTA Accord?

Does Stephen Harper pay the royalties on the on the copyrighted rock songs he performs at Conservative Conventions?

Wow, this bill just reeks of corporate greed. Nothing here helps consumers in any way (even the public domain part becomes irrelevant due to the copyright extension). Basically it just makes it easier for big businesses to deprive us of what should have been public domain years ago in order to capitalize off it further and also making it easier to attack and bankrupt individuals on a whim over copyright infringement just like what happens in the USA.

Why our supposedly democratic government even allows these rubbish bills in is beyond me.

Follow the money. If Mr Harper want to keep his job, he has to spend heavily on campaigns. Therefore the folks who pay for that, call the shots. It’s not a true democracy, just an oligarchy with a democratic layer.
Jean Cretien tried to get the money out, but Mr Harper reversed that, arguably at the urging of his funders…

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Looks like the TPP is too far from completion to be a non-election issue. YAY!

With better than even odds (IMHO) that Mr Harper is going to be voted out this time, his TPP involvement under Caretaker Rule will be the kind of legacy Canadians will not appreciate far into the future…

I demand $250,000.00 in compensation for all of my content that will hit the public domain 20 years later than I anticipated when I bought it. It’s fine to decline, because then there will also be no compensation when all the Old Typewriter Era Folk are dead and we change the copyright term to 10 years.

Harper owns Parliament and the Senate, and this TTP agreement is meant to control the media, making it easier to create false flags and shutdown and control what videos are posted like for example live streams and videos that show protests. Those boxes that provide free tv thru addons like jailbroken devices like apple tv are on the list too, the internet will no longer be an individual Right.

>”No Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal”

That would have an interesting effect on Canadian Cable and Telephone companies as “Cable Providers”. Many American channels are picked up with Antenas near the border and sent over the internet to the head end or other places across the country. I wonder how Shaw, Rogers etc would compete if they could no longer provide those signals. Of course they could cut a deal with the Americans and we could all just pay more for some thing that is free over the air for many.